Robinson v. Zorn, A-3152-11T4; Appellate Division; opinion by Fasciale, J.A.D.; decided and approved for publication April 17, 2013. Before Judges Fasciale, Maven and Carroll. On appeal from the Law Division, Camden County, L-519-10. [Sat below: Judge Meloni.] DDS No. 36-2-9626 [21 pp.]

Plaintiff Kevin Robinson, a Pennsylvania resident, was injured in New Jersey when the New Jersey Transit bus on which he was riding was involved in an accident with a vehicle driven by defendant Angelo Lionelli. Plaintiff did not own or have access to a vehicle, did not have his own automobile insurance, and did not live with a relative who did.

Plaintiff sued Lionelli, the bus driver, and NJT. He then learned that there was no insurance available to compensate him for his pain and suffering since, although Lionelli had a special automobile insurance policy providing coverage for personal-injury protection and death benefits, it did not provide third-party liability insurance. Further, plaintiff was ineligible to receive compensation under the New Jersey Property-Liability Insurance Guaranty Association Act because he resided in Pennsylvania or under the Pennsylvania Financial Responsibility Assigned Claims Plan because the accident occurred in New Jersey.

Plaintiff then filed a motion to amend his complaint to add an uninsured-motorist claim against NJT. Relying on Ross v. Transport of New Jersey, 114 N.J. 132 (1989), the judge denied the motion. Lionelli was found solely responsible for the accident and the complaint against NJT and the bus driver was dismissed.

On appeal, plaintiff argues that the judge erred by denying his motion to amend the complaint to add a UM claim against NJT.

Held: Neither the 1987 amendment to N.J.S.A. 39:6-54a nor the reform package creating the SAIP altered Ross, which is still applicable. Therefore, NJT is not required to provide UM coverage to out-of-state uninsured residents like plaintiff. Because plaintiff’s proposed amendment to assert a UM claim against NJT would therefore be futile, the judge did not err by denying plaintiff’s motion.

After noting that the Supreme Court has construed Rule 4:9-1 to require that motions for leave to amend be granted liberally, unless the amendment would be futile, the panel reviews Ross, which held that defendant New Jersey Transit (improperly pleaded as Transport of New Jersey) was not obligated to comply with the Compulsory Insurance Law, 39:6B-1 to -3, which requires owners of motor vehicles registered or principally garaged in New Jersey to maintain motor vehicle liability insurance coverage for at least the statutory minimum. The court applied 39:6-54, which established a public entity exemption from the Compulsory Insurance Law, and concluded that a public entity, which has not chosen to insure or self-insure, is freed from the obligation to provide UM coverage.

The panel then addresses whether the 1987 amendment to N.J.S.A. 39:6-54a altered the holding in Ross. The statute read: "This act shall not apply with respect to any motor vehicle owned by the United States, this State[,] or any political subdivision of this State or any municipality therein; nor with respect to any motor vehicle which is subject to the requirements of law requiring insurance or other security on certain types of vehicles." The amendment added, after "certain types of vehicles": "other than the requirements of P.L. 1972, c. 70 ([N.J.S.A.] 39:6A-1 et seq.) or P.L. 1972, c. 197 ([N.J.S.A.] 39:6B-1 et seq.)."

The panel says the Legislature used a semicolon to separate two classes of motor vehicles: publicly owned vehicles and those "subject to the requirements of law requiring insurance or other security on certain types of vehicles." The use of a semicolon makes the clauses disjunctive in nature and indicates a legislative intent to separate the first group of vehicles from the modifying clause "other than the requirements of P.L. 1972, c. 70 ([N.J.S.A.] 39:6A-1 et seq.) or P.L. 1972, c. 197 ([N.J.S.A.] 39:6B-1 et seq.)." The amendment, therefore, limited the second exemption to those vehicles covered by insurance requirements other than the no-fault insurance scheme and Compulsory Insurance Law and preserves the exemption for publicly owned vehicles from the no-fault insurance scheme or the Compulsory Insurance Law.

The panel says this conclusion is consistent with the Legislature’s decision to limit public entity liability pursuant to the Tort Claims Act and with the continued reliance on Ross to support the proposition that a public entity that has not chosen to procure insurance or provide self-insurance is exempt from providing UM coverage.

The panel rejects plaintiff’s contention that Ross is inapplicable because it is factually distinguishable and the court did not anticipate that third-party insurance might be unavailable to an uninsured out-of-state individual involved in an accident with a person insured by a SAIP policy. It says that although here, unlike in Ross, plaintiff does not have recourse to PLIGA, Ross did not explicitly make its holding dependent on recourse to other insurance. Nor does SAIP render Ross nugatory since the legislative history leading to that reform demonstrates that the Legislature intended to change the insurance scheme to improve market conditions, not to alter the exception afforded to public entities by 39:6-54.

Finally, the panel says it follows Ross in leaving to the Legislature further consideration of whether NJT should be obligated to provide UM insurance coverage to uninsured out-of-state residents involved in New Jersey accidents with individuals insured by a SAIP.

For appellant — Spear, Greenfield & Richman (Marc F. Greenfield and Jeremy M. Weitz on the brief). For respondents Zorn and New Jersey Transit Corporation — Jeffrey S. Chiesa, Attorney General (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Rahat N. Babar, Deputy Attorney General, on the brief).